Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Friday, 29 April 2016

The repeal of s.52 of the Copyright, Designs
and Patents Act 1988 (CDPA) has been expedited due to the outcome of a
government consultation. s.52 stipulates the term for artistic works which have
been industrially manufactured as 25 years from the year that they were first
marketed. This repeal was originally meant to have a transitional period of 5
years, coming into effect in April 2020. The length of this transition period
was challenged in May 2015, leading to a review of the proposed period. The
government decided that the period was in fact excessive, and withdrew the
Commencement Order, and conducted a new consultation
which ran from 28 October 2015 – 23December 2015. The government
response to the consultation can be viewed here.

Transition period expedited from 5 years to 6 months

The repeal will now occur on 28 July2016,
with the transition period ending on 28 January 2017.

From 29 July 2016, no new copies of affected
artistic works may be made or imported unless:

The works were contracted before the publication of the consultation
document at 16.30 on 28 October 2015

The rights holder has granted permission

An exception to copyright applies under the CDPA 1988

From 28 January 2017, no works created in
reliance on s.52 should be dealt with. By this date, unless the work falls
within an exception to copyright under the CDPA 1988, the works must be:

Sold or destroyed

Authorised by the rights holder

Guidance
is available for affected individuals, organisations and businesses.

What is s.52?

s.52 deals
with artistic works which have been industrially manufactured. This section
limits copyright protection for these types of artistic works, when more than
50 copies have been made, to 25 years. Under s.52(2) –

(2)After the end of the period of 25
years from the end of the calendar year in which such articles are first
marketed, the work may be copied by making articles of any description, or
doing anything for the purpose of making articles of any description, and
anything may be done in relation to articles so made, without infringing
copyright in the work.

The duration of protection is shorter than the
term for other artistic works which is 70 years after the death of the creator.
This section has been repealed to give industrially manufactured artistic works
the same term of protection as other artistic works.

• It is not enough for a
work (such as a piece of furniture) to look attractive to qualify as a work of
artistic craftsmanship.

• The phrase “artistic craftsmanship”
designates two requirements combined in the same work: artistic quality and
craftsmanship.

• “Craftsmanship” presupposes special
training, skill and knowledge for production.

• “Artistic” means it will have a real
artistic or aesthetic quality and must be a work of art or fine art. • Whether
an article is artistic must be determined in light of evidence.

• This could include: evidence of the
intentions of the maker, in particular whether or not he had the conscious
purpose of creating a work of art; evidence from ordinary members of the
public; expert evidence; whether the maker already has works to his name which
are acknowledged to be artistic, and the level of aesthetic appeal.

• Determining whether a
work is a work of artistic craftsmanship turns on assessing the extent to which
the particular work’s artistic expression is unconstrained by functional
considerations.

Previously expired works to resume term of protection

Works in which copyright has expired under
s.52 will assume the new term of life of the creator plus 70 years. For
example, if an industrially manufactured work was created in 2000, copyright
protection would have expired in 2025 under s.52. Now, copyright protection
will expire 70 years after the death of the creator. If the creator died in
2010, copyright will expire in 2080.

Effects on publications with 2D copies of affected works

Publishers will be required to secure licences
when printing 2D copies of affected works of artistic craftsman ship. All
existing publications containing such images must be sold before the end of the
transition period on 28 January 2017.

Game of Thrones? House of Cards? Forget them.The battle around what until recently was an area of copyright not many cared knew about, ie freedom of panorama, has now become one of the most eventful sagas ever.

The relevant provision in this sense is Article 5(3)(h) of the InfoSoc Directive, which allows Member States to introduce national exceptions/limitations to the rights harmonised by that directive to permit the "use of works, such as works of architecture or sculpture, made to be located permanently in public places".

Along with discussion of a new neighoubring right for publishers (whether in the press sector alone or also in other sectors), readers will remember that last month the EU Commission launched a public consultation[running until 15 June 2016] on this very topic [here].

In parallel with policy discourse, also national courts and legislators alike are contributing to the overall debate around freedom of panorama.

Recent case law: that Swedish ruling

On the one hand, earlier this month the Swedish Supreme Court issued a ruling[here, and here for an English translation] in which it held that online publicly accessible databases like Wikipedia cannot rely on the Swedish panorama exception within Article 24(1) of the Swedish Copyright Act. This provision states that:

"Works of fine art may be reproduced in pictorial form

1. if they are permanently located outdoors on, or at, a public place

2. if the purpose is to advertise an exhibition or a sale of the works of fine art but only to the extent necessary for the promotion of the exhibition or the sale or

3. if they form part of a collection, in catalogues, however not in digital form."

The Swedish Supreme Court ruled that the making available of images of artworks through publicly accessible online databases would unreasonably prejudice the rightholders' legitimate interests, in that it would deprive them of potential commercial revenue arising from the exploitation of such dissemination channels.

To this end, the public interest underlying the non-profit and open nature of Wikimedia's database would not offset the prejudice caused to rightholders.

Oscar Wilde's tomb at Père Lachaise

Recent legislative debate: the French Senate

Moving from courts to parliamentary assemblies, as readers will remember not all Member States have implemented a panorama exception into their own national copyright laws.

Among those that have not taken advantage of the possibility under Article 5(3)(h) of the InfoSoc Directive there are Italy and for the moment still France.

As reported by Numerama yesterday the French Senate voted in favour of an amendment[which, I understand, to become law has now to be adopted also by the Assemblée Nationale] aimed at introducing into French law a (fairly restrictive) panorama exception [see here for a recap (in French)].

Basically, what will be permitted is [WARNING: Kat-translation!] the reproduction and representation of architectural works and sculptures, permanently located on public roads, made by physical persons, with the exclusion of uses having direct or indirect commercial character.

If adopted in its current form, the French panorama exception would come with significant limitations which - incidentally - do not appear to have any basis in the formulation of Article 5(3)(h) of the InfoSoc Directive [whether this is permissible under EU law is doubtful, as I argued here].

And the most significant limitations do not really appear to relate to the prohibition of commercial uses:

First, the panorama exception would only apply to individuals, not also legal persons. As such, taking from the Swedish example, Wikipedia et similia would not be covered by it.

Secondly, the exception would only apply to works located permanently on public roads: what about all those works located permanently elsewhere (eg public parks, stations etc)?

The French panorama exception in practice: an example

Let's assume that the panorama exception in France is adopted in its current form.

Among those who rest there, there is Oscar Wilde. His tomb is likely to be eligible for copyright protection in the first place [at the end of the day, it's France, not the UK, so subject-matter categorisation is not really an issue] and be still protected by copyright, since the sculpture who realised it, Jacob Epstein, died in 1959.

If I took a photograph of Wilde's tomb would I be covered by the panorama exception? That's not so certain - I would argue - as it may be doubtful whether a cemetery, with free access yet opening hours, could be regarded as part of the 'voie publique'.

But things could be worse for other subjects, ie Google. Currently Google Street View allows me to see Oscar Wilde's tomb right from my laptop's screen.

However, this reproduction by Google would be likely regarded as unlawful under the new exception, since Google is certainly not a 'personne physique' falling within the scope of the exception. As such, could this mean that in France Google would have to seek a licence to reproduce images of architectural works and sculptures, no matter where permanently located [this might not be the only image-related headache for Google in France: see here]?

In this example, probably both Google and I could be in trouble. This way, even a harmless visit to Père Lachaise could turn into something that - unlike the place itself - would be anything but peaceful. But what do readers think?

"Authors
Guild has been on a collision course with Google Book for over a decade since
they first filed their copyright infringement suit on 20 September 2005,
seeking declaratory and injunctive relief and statutory damages on behalf of a
purported class.

In a thoroughopinionby Judge Leval, the 2nd Circuit explored the facts of Google Books’ digital copying, its search function and
limited snippet display of petitioners’ works. The arguments in favour of
Google Books project were overwhelming. Therefore, the 2nd Circuit concluded
thatGoogle Books is entirely
consistent with the purposes of copyright law and fair use in fact, advances
the interests of authors. In effect, this means that as users we can continue
to benefit by scrounging for books of interest online, and this appears in line
with the needs of digital age.

So what is Google Books? Not that you don’t know but just in
case......

In response to a search query, Google Books provides the user with
a list of books that contain the chosen search term and (in many cases)
information about the immediate context in which the term appears. It also
informs the user where they can buy or borrow the book.

In 2004 Google entered into bilateral agreements with 11 major
research libraries to make digital copies of books in their collections. Those
collections included novels, children’s books, and books of poetry, but the
“vast majority” of selections were “nonfiction, and most are out of print.”
Many of the books are in the public domain, but Google also made digital copies
of books that remain in copyright.

For each book, Google made a digital scan and extracted
machine-readable text by using optical character recognition technology. By
doing so, Google was able to create a comprehensive index of the books’ texts
that can be searched by users. All of the files involved in the process are
securely stored on servers that are not accessible from the Internet and
are protected by the same security systems that protect Google’s own
confidential information.

After entering a query, a user can click on a particular search
result to see an “About the Book” page for the chosen book. “About the Book”
pages include links that allow the user to buy the book and to find the book in
a nearby library when that is possible. Those pages do not contain advertising
(other than bookseller information), and Google receives no payment in
connection with the “buy the book” links.

For certain titles, Google Books displays up to three short
snippets of text—each approximately one eighth of a book page— in response to
user queries. Those tiny segments give users some minimal contextual
information to help the searcher learn whether the book’s use of that term will
be of interest to her. By reviewing snippets containing the searched term, a
user can often determine the relevance of a book to his/ her interest in a way
not possible with earlier methods such as a card catalog or bibliographic index.

Google Books places several restrictions on snippet view that
ensure that the snippets cannot be used as a substitute for buying or borrowing
the book itself. No more than three snippets are displayed in response to a
search query, even if the same search term appears elsewhere, and Google Books
always displays the same snippets in response to a given search term, no matter
how many times the search is run. Google also “blacklists” (ie, makes
unavailable for snippet view) at least one snippet per page and one page out of
ten per book. And there are additional technological restrictions to prevent
automated downloading of snippets. These features substantially protects
against its serving as an effectively competing substitute for Plaintiffs’
books.

Google Books does not offer snippet view for certain types of
books, such as dictionaries, cookbooks, and short poems, where there is a risk
that access to a small portion of the book could be a substitute for the book
itself. Authors/right holders wary of Google Books have a choice to opt out.

The agreements between Google and each library permit the library
to download and retain a digital copy of each book it has submitted for
scanning.

Judge Pierre Leval

The decision

The Court of Appeals for the 2nd Circuit analysedGoogle
Books project under the fair use factors articulated in 17 U.S.Code § 107, both
separately and in combination, noting that thestatute’s four factors are not
to be treated in isolation but are to be weighed together, in light of the
purposes of copyright.Further
it noted that the first and fourth factors warrant greater weight.

First factor: Purpose and Character.The court analyzed whether Google Books
supersedes the objects’ of the original creation, or instead adds something
new, with a further purpose—that is, whether and to what extent the new work is
‘transformative. The court explained that a transformative use is one that
communicates something new and different from the original or expands its
utility and accordingly, concluded that Google Books’ search and snippet
functions are highly transformative.

Second factor: Nature of the copyrighted work.On its own, this factor did not
influence the court's analysis; the court might have weighed that factor in
favor ofGoogle, since
most of the works in Google Books are factual, not fiction, but it did not do
so.

Third factor: Amount and substantiality of the portion used in
relation to the copyrighted work as a whole.The court explained that digital copying
of the totality of the original is literally necessary to achieve Google’s
transformative purpose of enabling search. If Google were to copy less than the
totality of the originals, then its search function could not be able to advise
searchers reliably whether their searched term appears in a book. In fact it
was noted by the 2nd Circuit that in spite of the plaintiffs’ counsel employing
researchers over a period of weeks to do multiple word searches on plaintiffs’
books, in no case were they able to access as much as 16% of the text. Further,
it was observed, that Google has constructed the snippet feature in a manner
that substantially protects against its serving as an effectively competing
substitute for plaintiffs’ books. Moreover, the snippets collected were usually
not sequential but scattered randomly throughout the book.

Market assessment

Fourth factor:Effect of the use upon the potential market for or value of the
copyrighted work.The ourt found no
evidence of any significant harm to the market for petitioners’ books, since
they were unable to show that any amount of searching could yield more than a
small fraction of a book’s text. The court explained that the petitioners’
copyright interest in their books does not include an exclusive right to supply
information (of the sort provided by Google) about their works. The ourt
held that although snippet view may from time to time satisfy “the searcher’s
need for access to a text,” an occasional lost sale does not constitute “a
meaningful or significant effect ‘upon the potential market of the copyrighted
work.’ The court noted that in nearly a decade of litigation the Petitioners
had failed to introduce evidence of a single lost sale attributable to Google
Books.

Finally, the ourt rejected petitioners’ claims that permitting
the libraries to download digital scans of their own books constituted
infringement: “Google’s provision of digital copies to participating libraries,
authorizing them to make non-infringing uses, is non infringing, and the mere
speculative possibility that the libraries might allow use of their copies in
an infringing manner does not make Google a contributory infringer. Hence, the
Court of Appeals properly rejected petitioners’ assertion that they suffered
economic harm because Google Books somehow preempted their right to license
their books for search uses. The court clarified that the exclusive right that
the petitioners sought to preserve is not one that copyright protects: The
copyright that protects Plaintiffs’ works does not include an exclusive
derivative right to supply information about their works through query of a
digitized copy."

Review underCampbell
v Acuff-Roseframework

The court reviewed the purpose and character of Google Books’ uses
underCampbell’s
framework. It drew a distinction between providing informationabout abook and appropriating the
content of that book. The Court was of the view that Google Books is a
well-intentioned project as is highly beneficial to all since it augments
public knowledge without providing the public with a substantial substitute for
matter protected by the plaintiffs’ copyright interests in the original works
or derivatives of them. Further, snippet view enables identifying of books of
interest to the searcher by way of revealing just enough context surrounding
the searched term to help a user evaluate whether the book falls within the
scope of his/her interest.

Drawing a parallel with the Campbell case, the court held that a
poetic parody may be “new creative expression,” but so is a search tool that
tells would-be readers what books are relevant to their interests in light of
their own search terms. Petitioners’ contention that no use can be
transformative unless it alters the content of the original work did not find
any support in the court and it was held that this rigid approach to fair use
ignoresCampbell’s warning
against “simplification with bright-line rules.”

Google Books is nice and everything,but what better place to sleep while in the library than an actual book?

Commercial character is “not conclusive” in a fair use
determination

The court was also of the view that the 2nd Circuit rightly
concluded that the fact that Google is a commercial business does not outweigh
the dramatically transformative character of Google Books. It was rightly
explained in theCampbellcase that the more transformative
the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use.

My take

While I was a law student in India, I was required to search for
books in a physical library and the resources therein were few and far between.
Searching manually took a lot of time but with Google Books, every student,
researcher, lawyer, academician stands to benefit as it brings them to the book
at the click of a mouse and also the authors close to their target audience.
Therefore, I for one, cannot extol enough the virtues of the Google Books
project.

The goal of Google Books is to make the life of every researcher or avid book reader much easy.
The Google Books litigation outcome augers well for the reading/researching
population. This case has certainly brought delight to researchers all
over the world but dismay to the Authors Guild."

Thursday, 28 April 2016

The role and responsibility of online
platforms and intermediaries is a key issue in the Digital
Single MarketStrategy, which the EU Commission launched last May[see
Katpostshere,here,here,here and here]. After a number of public consultations, on-line and
off-line enthusiasts were anxiously awaiting for the Commission to release a
Communication on that very issue by the end of May 2016. A few hours ago,Politico provided
for a good remedy against our anxiety by leaking the draft Communication, which
bears the lovely title "Online Platforms and the Digital Single Market Opportunities
and Challenges for Europe". The draft version is dated 18 April.

The
draft Communication addresses a number of DSM initiatives where platforms'
liability is involved and shades light upon the general principles that will
guide the Commission's reform efforts as regards E-Commerce, AVMS, and IPRED
Directives. Overall, the draft Communication describes a strongly pro-competition
program that reminds to this Kat the EU he knew when he attended university [i.e., ages
ago], when the Commission was perceived as a disruptive Institution aimed
at battling status quos, rather than preserving them. Be that as it may, here
are the major points that the Communication addresses.

ISP
Safe Harbour is here to stay

During
these months, many have pushed for the DSM strategy to significantly amend the
liability regime that the E-Commerce Directive provides for Internet Service Providers
(ISP) when it comes to user-generated content (UGC) transmitted
or stored. A few days ago, the Commission Vice-President for the DSM Mr Andrus
Ansiptweetedthat it would have not be the case

In
line with Commissioner Ansip's take, the major point of the leaked
Communication is that the DSM Strategy won't change the ISP liability regime as
we know it. The draft Communication stresses that,
whilst "designed at a time when online platforms did not have the scale
they have today", the good, old E-Commerce Directive has done a good
job in creating a regulatory environment "that has considerably
facilitated their scaling-up". Without the shield from liability for UGCs,
a crucial element "for the further development of the digital economy in
the EU and for the unlocking of investments in platform ecosystems" would
be missing, to the detriment of the EU Information Society as a whole.

This is why "the public consultation showed strong
support for the existing principles of the e-Commerce Directive", and the
EU Commission wishes to maintain it as it is -- apparently without adding new kinds of ISP to the E-Commerce Directive fabulous three
(i.e., mere conduit, caching, and hosting), differently from what the public consultation on the E-Commerce envisaged investigating the need to further legal regimes for linking and cloud service providers.

EU-wide
notice-and-take-down procedure postponed

The public consultation on the E-Commerce Directive included
a question on the opportunity to harmonise the notice-and-take-down procedure (NTD) EU-wide. As far as this Kat knows,
this is not the first time that this happens, as a piece of legislation aimed
at harmonise NTD throughout the EU has circulated in Brussels some years ago, before
disappearing. This Kat believes that an
EU NTD could actually help to bring certainty and effectiveness in the market
of on-line contents, and so does the draft Communication, which acknowledges:

"a need to monitor and improve
effective procedures for notice-and-action to ensure the coherence and
efficiency of the intermediary liability regime, in a context where there is a
risk of fragmentation and incoherence stemming from the multiplicity of
reporting mechanisms designed by the platforms themselves or by Member States".

However, the Commission and this Kat must feel different
degrees of love towards NTD, as the Commission does not intend to take any
action

"before considering launching an
initiative, the Commission will assess the impacts of on-going reforms such as
the copyright review, the REFIT of the Audio-Visual Media Services Directive
and important co-regulatory initiatives such as the EU Internet Forum … The
Commission will continue to review the need for formal notice-and-action
procedures during the second half of 2016, taking into account the effect of
the updated audiovisual media and copyright frameworks on illegal content
online".

The
one-size-fits-all strategy does not work for all UGC-related problems:

"[W]ithout jeopardizing online platforms' innovation
potential, the Commission considers that specific regulatory action would be
more effective through sectorial legislation, on the basis of maximum
harmonisation and a problem-driven approach, and without prejudice to the
e-Commerce Directive".

Within
this sectorial approach, the
Commission envisages different actions to contrast different harmful UGCs (those
spreading hatred, cyber-bullying, incitement, contents infringing IP, etc.) and
to ensure that the value of copyright-protected content available on-line
be shared in a fair manner between distributors and right holders.

The
way the Commission plans to do so is encouraging "all types of online
platforms to take more effective voluntary action to safeguard key societal
values" and promoting EU-wide "voluntary self-regulatory
actions" among ISPs, which the draft Communication considers "very
effective, in particular when subject to a clear set of principles, targeted,
and continually improved to keep pace with the challenges as they evolve".
Once again, among those principles the
draft Communication mentions the safe harbour, stressing that all sectorial measures
will be "fully coherent with the e-Commerce Directive" liability
regime for ISPs. For some reasons that this Kat is too basic to get, EDRI is
not very happy with that.

Measures
to promote self-regulations aimed at protecting minors and tackling online incitement will be issued "in the context of the
updated Audiovisual Media Services Directive to be adopted alongside this
Communication" [i.e., the 25 of May?].
As to the fair allocation of the value generated by copyright-protected content,
the Commission intends to take action "in the next copyright package",
that should be adopted later this year.

AVMS
and OTTs: don't imitate, deregulate!

Another
big news is the general approach that the Commission wishes to adopt in order
to create a "level playing field" for traditional and on-line
providers in different sectors, Audio Video Media Service (AVMS) included. Since a while, providers subject to the AVMS Directive
have been claiming that on-line platforms hosting above-the-network audio-visual
content [the so-called Over
The Top services, 'OTT']should
comply with their same rules, as the converging environment led them to compete
on the internet and in the physical world. In this regard, the draft
Communication acknowledges that

"Where the same activities are supplied by different actors,
these activities should be regulated in the same way in order to avoid market
distortion".

Be
that as it may, it also observes that

"comparable activities that are provided under materially
different conditions, such as broadcasters controlling content versus online
platforms relying on user-generated content, should naturally be treated
differently … This modernisation should seek to avoid imposing a
disproportionate burden on online platforms business models".

If
OTT should not be considered like traditional broadcasters, traditional
broadcasters could be made more similar to OTTs, though. In this perspective, the
draft Communication suggests that a "level playing field" could be
implemented by reducing obligations that traditional AVMS providers have to
comply with:

Not so sure it works.

"[I]n areas where competitive pressures have been increased,
deregulation of traditional sectors may offer the most beneficial response to
achieve a level playing field".

In
light of some out-of-time obligations traditional broadcasters have currently
to comply with, a substantial deregulation appears to be the smartest solution to
fully exploit the disruption that on-line providers have brought in many traditional
sectors [likeaKatpost on Uber outlined some time ago]:

"Competition from online platforms can provide incentives for
traditional market players to innovate and improve their performance, as well
as point to a need to simplify and modernise existing regulation".

Transparency,
interoperability, fair competition in B2B relations

The public consultations have reported users and
businesses' concerns as to the lack of transparency in relation to the
collection and storage of both personal and non-personal data. A major deal
seems to be that of fake reviews, "where loss of trust can undermine the
business model of the platform itself, but also lead to a wider loss of trust,
as expressed by many responses to the public consultation".

In this regard, the Commission considers reviewing "the
EU consumer and marketing law, including guidance on the Unfair Commercial
Practices Directive, as part of its REFIT initiative" by the end of this
year, meanwhile calling on

"[I]ndustry to step-up voluntary
efforts to prevent trust-diminishing practices, in particular – but not limited
– to tackle fake or misleading online reviews".

The draft Communication also addresses the need to
ensure the possibility for users to switch providers affordably "and with minimum
disruption", allowing them to easily retrieve "all content they have
provided or was generated on the basis of their Internet use". The "full
implementation of the new General Data Protection Regulation" and pushing
forward "the proposed Directive for the supply of digital content"
are the tools that the Commission considers more convenient to achieve those
objectives.

In view of creating an open and pro-competitive
on-line environment, especially "in emerging areas such as virtual
reality, smart cities and the Internet of Things", the draft Communication
intends to stimulate "the emergence of open online platforms" and to "put
forward proposals for effective approaches, including technical standards, to
facilitate switching and portability of personal and non-personal data among
different online platform and cloud computing services".

From another standpoint, the public consultations revealed
that some businesses are concerned about "allegedly unfair trading
practices on suppliers". The Commission is gathering further evidence in
this regard, and

"by the end of spring 2017, … will
determine whether additional EU action is needed beyond self- and co-regulatory
efforts that may include dispute resolution mechanisms or the provision of
better information or guidance".

What's
next?

Next
is the official Communication, which is due by [or on] 25
May. If the latter would result to be in line with the leaked draft, we could
reasonably expect

-Some kind of update
about the AVMS Directive reform [perhaps the very updated Directive] to be "adopted
alongside this Communication". The official version, they mean, due by the
end of May;

-The Copyright package
to be issued in the autumn 2016;

-A
multi-stakeholder forum to take place before the end of 2016, assessing
self-regulatory measures and common technical standards aimed at tackling
illegal contents and ensuring interoperability, fair competition and transparency;- Discussions about EU-wide NTD procedure and possible actions re B2B agreements to be postponed to 2017.

Let’s call it “the Machine”. From at least the 17th century onwards, copyright has flourished because technology has enabled works to be

produced in greater numbers and at a lower cost. Before “the Machine”, monks, rabbis and the occasional author struggled to pen their works, one hand-stroke after another. Even in so doing, there was no publishing business. Publishing became a business only with the development of “the Machine”. On the whole, “the Machine” has been a net positive in translating copyright protection into commercial opportunity. Philosophers, economists and even Hollywood (think of Charlie Chaplain and the movie— “Modern Times”) have ruminated on the dark side of “the Machine” but, from the macro-point of view, “the Machine” has been good for the publishing of contents. This Kat accepted this view—until now.

It began when this Kat was asked to write a modest piece for a non-IP, on-line journal. He dutifully penned the text and sent it off to the editors/publishers. Let’s already pause here. For some time, the very act of article submission is done solely on-line. No more the days when one sent the manuscript by post or fax. Now, an author must navigate a website with instructions how to log-in, fill-out various fields, and submit the text. Sometimes these instructions are intelligible, sometimes they read like they were drafted in Fortran. Of particular anxiety is the asterisk—failure to comply the instructions with a field indicated by an asterisk, and one is simply unable to complete the submission.

After a bit of struggle, this Kat managed to successfully upload his text. Sometime later, he received the reviewer’s comments: change a word here, add a word there, and consider including a new paragraph on a certain point. No problem—that is the time-honored task of a reviewer and an author’s work is the better for it. But the reviewer’s comments also advised this Kat that he had to completely re-format the piece to meet the journal’s house style-- footnotes, end notes, text notes, the text itself, all needed to be redone. Ouch. Not only this, because this Kat took more than the number of days fixed in the system to complete the changes, when he tried to upload the revised text, it was treated as a new submission, which meant that in principle he had to deal with all of the fields anew and go through the review process once again. Some back and forth later, the number of required fields were reduced and the review process was waived. This Kat dutifully reentered the information and the revised text was submitted.

Here is where “the Machine’ really took over. Proofs were sent to this Kat for final review, but the proofs were made on the original, rather than the revised text. That’s right-- the proofs had been based on the wrong version. Not only that, but the “Key Words” on the proofs had been generated using a text-reading algorithm, yielding wholly irrelevant terms, despite the fact that the Key Words had been submitted with the original text. Not only that, but the production editor advised that, upon reflection, there had been no reason to have requested the reformatting of the article from the outset! As such, I could complete my review of the proofs based on the text as initially submitted (meaning 10 man-hours had been wasted).

This Kat wants to make it clear: from his discussions, it seems that with a few stellar exceptions (some of whom this Kat has had the pleasure of working with), the broad strokes of his tale are not unique to the particular publisher involved. And yes, this Kat holds “the Machine” responsible in part. This Kat would like to think that he is not naïve. He knows that in today’s business climate, there is a strong push to replace labor with capital, even in the publishing world. Digital platforms are ultimately cheaper than additional employees. However, publishing still rests on the human element—author, editor, and publisher. Over reliance on a digital manuscript submission platform does harm to that interrelationship and the exercise of human judgment that has been a linchpin of publishing. Even if, for over 300 years, “the Machine” has been good to authors and publishers, it seems to this Kat the publication process is impaired when it develops an over reliance on digital platforms, at the expense of the human element and at the cost of rigidity and tunnel vision.

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